A Facial Recognition Company's First Amendment Theory Threatens Privacy--and Free Speech

What could be one of the most consequential First Amendment cases of the digital age is pending before a court in Illinois and will likely be argued before the end of the year. The case concerns Clearview AI, the technology company that surreptitiously scraped 3 billion images from the internet to feed a facial recognition app it sold to law enforcement agencies. Now confronting multiple lawsuits based on an Illinois privacy law, the company has retained Floyd Abrams, the prominent First Amendment litigator, to argue that its business activities are constitutionally protected. Landing Abrams was a coup for Clearview, but whether anyone else should be celebrating is less clear. A First Amendment that shielded Clearview and other technology companies from reasonable privacy regulation would be bad for privacy, obviously, but it would be bad for free speech, too.